“Judiciary must be encouraged to find ways and mean to Regulate its own affairs- consistent with the spirit of the constitution.”[1]
– Manmohan Singh
Judicial autonomy is a concept where judiciary is sovereign in decision making and Decisions are not affected by the extraneous factors such as other branches of the Government. The independence of judiciary depends upon the separation of powers where judiciary is free from legislature and executive. The independent judiciary is necessary for a free society and vibrant democracy.
Shimon Shetreet (1994) defines it as “independence of judiciary means independence of collective body of judiciary and also the independence of the judges.”[2] This argument was
raised because the appointments, salaries and tenure of the judges should be beyond the control of the executive to ensure the judicial independence.
Constitution plays pivotal role in ensuring the judicial independence as it guarantees it and in Indian constitution Article 50 says that State shall take steps to separate the judiciary from the executive and also in Article 121 and 211 it is stated that judicial conduct of judges of Supreme Court and High Court cannot be discussed in the parliament or the state legislature.
In present, we are witnessing conflict between executive and the judiciary and both are targeting each other. One side judiciary declares acts passed my government null & void the other side executive is targeting judiciary on the issue of transparency and being politically influenced. Same could be seen in India and Israel. In India the executive wants to intervene in the working of the judiciary and the present government came up with NJAC (National Judicial Appointment Commission) 2015, which was declared unconstitutional and in Israel the ruling party LIKUD came up with “override clause” where Knesset have right to override judicial order.
CENTRAL QUESTION: The central question of the research is analysing the autonomy of judiciary in contemporary times.
INDEPENDENCE OF INDIAN JUDICIARY
MP SINGH (2000)
Prof. MP Singh advocated that there were several instances where judiciary was in conflict with executive, where executive tried to intervene in judiciary and appointment of judges became an important issue and in April 1973 it became a public issue when justice A.N Roy was appointed CJI by superseding 3 most senior Judges who gave ruling against the stand of the government on different occasions. Another threat was transfer of judges and Justice S.H Sheth was transferred from Gujarat High Court to Andhra Pradesh High Court, he challenged this transfer on two grounds (i) the transfer was made without his consent (ii) it was also made without consulting the president and CJI. Prof. MP Singh mentioned four important cases which examines the autonomy of judiciary.
1.) The 1st Judge case 1981 (S.P GUPTA VS UNION OF INDIA)[3], here it was stated that CJI will not get primacy in appointment of judges of SC & HC and also transfers will be made by the executive in public interest. This decision was criticised by many scholars because it was against judicial independence.
2.) The 2nd Judge case 1993 (SUPREME COURT ADVOCATE ON RECORD VS UNION OF INDIA)[4], here it was stated that CJI will get primacy in appointment of the judges and in transfer of judges. The word “INCONSULTATION” with the CJI was interpreted which means “with the consent” of CJI or “concurrence”.
3.) The 3rd Judges case 1999 (PRESIDENTIAL REFERENCE), in this case the collegium was widened to five judges, where it will have 1 CJI and 4 other judges.
4.) The 4th Judge case 2015 (SUPREME COURT ADVOCATE ON RECORD II VS UNION OF INDIA), under this case Supreme Court of India declared 99th amendment unconstitutional on the ground that it violates the basic structure doctrine. The 99th amendment was to set up NJAC (National judicial appointments commission), it was a body responsible for the appointments & transfer of judges in India and it would replace the collegium system. This decision was struck down because the safeguard of country and citizens can only be ensured by keeping judiciary absolutely insulated and independent. The bench rejected NJAC act with 4:1 majority, but it was also agreed that collegium system need some reforms.
S.P. SATHE (2001)
Independence of judiciary lies in the non- political perception of the judicial decisions [5]. By “Non- Political” he meant that there shouldn’t be any committed judiciary or the judges shouldn’t be committed to any political party or political party ideology. He stated that the decision pertaining to the Indira Gandhi election by Allahabad High Court (1975) which declared elections invalid was a political decision as it unseated a sitting prime minister so it was political because it had political consequences. He emphasized that not only judiciary but also, the judges should be independent and autonomous. He reiterated that a judge should be independent, fearless and impartial. He argued that parliamentary powers could be a great threat to judiciary but in present, judiciary is playing pro-active role and it has become too strong whereas the parliament has lost its importance by coalitional alliance and also, if government tries to take sinister actions it can be declared invalid by the judiciary on ground of violation of basic structure doctrine.
INDEPENDENCE OF ISRAELI JUDICIARY
SHIMON SHETREET (1984)
Due to absence of the constitution, the role of judiciary is not clearly defined in Israel. Judiciary plays an important role in Israel like, it has contributed in development of the laws with change in the time and circumstances. In Israel the role of executive has declined, while the role of High Court of Justice (Supreme Court of Israel) has increased and it has captured a greater role in system of government and the reason is public realised that Knesset and administration cannot solve their problems and many a times even Knesset seeks help from judiciary in economic and political matters. Here the judicial independence is directly linked with personal independence of judges. The judges need to free from outside influences, control of executive and the superior judges. Anyone who tries to influence judge outside the official hearing is considered as a punishable offence. In case a judge is likely to be bias in any hearing he/she is disqualified from sitting in that case.
‘The independence of judiciary is not achieved in an instant act, but rather over a period of time by a continuous struggle which takes place within the framework of an ongoing and dynamic process’. He explains “independence” and “judiciary” separately. He says that judiciary is not part of executive or legislature but it is an organ of government and its primary function is adjudication. He links independence with substantive independence and personal independence.
JUDICIAL OVERHAUL: A THREAT TO ISRAELI JUDICIAL AUTONOMY
Israeli judiciary is one of the most powerful judiciaries in the world and in present time it is under crisis. The ruling party Likud and its coalition after winning the election in 2022, stated that they will work on amending, reforming and balancing the judiciary. They begin with “override clause”. Prime Minister Benjamin Netanyahu has 3 corruption charges- (i) CASE-1000, took gift as favour during foreign visit (ii) CASE-2000, Netanyahu tried to influence one of the leading Israeli newspaper ‘YIDOTH’ to give political coverage to Likud party (iii) CASE- 4000, ‘Begez’ to help Netanyahu to give wider coverage in ‘Walla’. Another minister Aryeh Deri, leader of SHAS party accused for breach of trust and misuse of office. He was proved guilty and he was released on condition that he would not contest elections but in 2022 he contested election and won and High Court of Justice challenged the Deri’s appointment. This whole scenario threatened Likud party as government was formed through coalition.
Reforms to be made in judiciary which threatens the judicial autonomy are:
- Knesset will have right to override the laws taken by the judiciary.
- The basic laws cannot be challenged and quashed by the HCJ.
- Judges will be selected by the executive and judiciary will have less power in this respect.
OPPOSING JUDICIAL OVERHAUL
Thousands of citizens protested outside the Knesset against judicial overhaul. The president of Supreme Court Esther Hayut and the other lawyers also protested. Israel’s national labor union shut down the airports which affected the passengers . Israeli universities made many strikes and demonstration in protest of judicial overhaul. Israel’s president Herzog calls to halt judicial coup legislations The private corporates, banks, NGO’s, civil society organisations, political parties, Histadrut, government ministries, and most importantly the citizens they were against the override clause of the government. Currently, Netanyahu agreed on delaying the government’s plan as the plan faced a massive criticism from the citizens, institutions and the organisations.
DEFINITION, RATIONALE AND SCOPE OF STUDY
Judicial autonomy is defined as the ability of the courts and judges to perform their duties free of influence or control by the other external factors like government or private, basically it is separation of judiciary from legislature and executive and latter two cannot impede or intervene in judicial functioning. The rationale of the problem is to investigate; Should there be judicial autonomy or not, should judiciary be given its own structure to work accordingly, to whom judiciary is accountable if not accountable to the executive. Therefore, a vibrant democracy requires independent judiciary, ‘The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of political winds that are blowing’[6]. The above definition also opens up to various scopes, example independence from what? Independence from whom? Independence for whom? Independence for what purpose? These could be shortly answered like independence from the extraneous influences on judges such as bribery, public pressure. Independence from whom includes, judiciary’s independence from other organs of the government ‘legislature’ and ‘executive’, here the principle of separation of power works. Independence for whom signifies the independence of judiciary as an institution and independence of individual judges as the individual judges can be forced to accept the demands of the bureaucrats and this could dilute the pureness of judiciary. Independence for what purpose includes rational decision making, impartial adjudication and prevailing Rule of Law.
CONCLUSION
The independence of the judiciary in India and Israel has recently come under examination and discussion. The constitutional structures of both the nations are designed to provide an independent judiciary, which is essential for sustaining the rule of law and defending individual rights. In India, the judiciary is regarded as one of the ‘foundational elements of democracy’. The Indian Constitution guarantees the division of powers and gives the court considerable authority to interpret and uphold the law. The highest court in India, the Supreme Court, has been essential in defending fundamental rights and maintaining the rules
of justice. Nevertheless, issues with the judge appointment procedure and the backlog of cases, which may affect the judiciary’s efficacy and efficiency. The judiciary is regarded as a crucial part of the democratic system in Israel too. The duty of upholding the rule of law falls on the High Court of Justice (Supreme Court of Israel), which holds the position of highest judicial authority. The Israeli judiciary is renowned for its activism and has significantly aided in defending human rights and advancing democratic principles. However, there have been discussions about how the judiciary and other parts of the government should be balanced, as well as worries about the selection procedure and the impact of political issues on court rulings. It is significant to highlight that there are issues with the judicial independence in both, India and Israel. The independence and efficiency of the court may be impacted by elements including political meddling, executive influence, and resource limitations. Additionally, there is a constant need for reform in the areas of justice system accountability and transparency. The independence of the judiciaries in India and Israel is a complicated and developing issue, to sum up.
[1] https://www.brainyquote.com/quotes/manmohan_singh_948093
[2] Singh, M.P (2000), Ind. Int’l & Comp. l. rev, securing the Independence of the
Judiciary- The Indian Experience
[3] S.P. Gupta VS UOI AIR 1982, SC 149
[4] Supreme court Advocate on record VS UOI (1993) 4 SCC 441. Case No.: 1303 0f 1987.
[5] Sathe, S.P (2001), Washington University Journal of Law & Policy, Judicial activism- The Indian Experience (pp.38-39, 99 -107)
[6] https://www.legalserviceindia.com/legal/article-719-rule-of-law.html
Author: Avishka Saini
Juris Centre 